Nichols v. Logan

• Decision Date: 23 November 2004
• Docket Number: No. 01CV1797BEN.,01CV1797BEN.
• Citation: 355 F.Supp.2d 1155
• Court: U.S. District Court — Southern District of California
• Parties: Joseph NICHOLS, CDC # H-87217, Plaintiff, v. P. LOGAN, et al., Defendants.

355 F.Supp.2d 1155

Joseph NICHOLS, CDC # H-87217, Plaintiff, v. P. LOGAN, et al., Defendants.

No. 01CV1797BEN.

United States District Court, S.D. California.

November 23, 2004.

Joseph Nichols, Soledad, CA, Plaintiff pro se.

Richard F. Wolfe, Deputy Attorney General, San Diego, CA, for Defendants.

ORDER ADOPTING REPORT AND RECOMMENDATION AS MODIFIED AND DISMISSING THE ACTION IN ITS ENTIRETY WITHOUT LEAVE TO AMEND

BENITEZ, District Judge.

On June 16, 2003, Plaintiff filed a Second Amended Complaint under 42 U.S.C. § 1983 naming seven employees of the Calipatria State Prison as defendants. On December 31, 2003, the defendants joined together in moving to dismiss the Complaint. On May 4, 2004, Magistrate Judge William McCurine, Jr., issued a Report and Recommendation. On May 21, 2004, Plaintiff filed a 390-page Objection. The Objection consists of 14 pages of text and 376 pages of exhibits. On June 16, 2004, defendants filed a Reply to the Objection to the Report and Recommendation. On July 7, 2004, the case was transferred to the undersigned. Finally, On August 24, 2004, Plaintiff filed: (1) an amendment to the objections; (2) a declaration in support of the amendment to the objections; (3) a motion to amend the Third [sic] Amended Complaint by adding a count seven; and (4) a motion to amend the Second Amended Complaint by adding a count eight.¹ For the reasons stated below, the Court adopts the Report and Recommendation, as modified and Orders the Complaint be dismissed in its entirety without prejudice for failure to completely exhaust administrative remedies, without leave to amend.

A district judge "may accept, reject, or modify the recommended decision" of a Magistrate Judge on a dispositive matter. F.R.C.P. 72(b); see also 28 U.S.C. § 636(b)(1). Moreover, "the court shall make a de novo determination of those portions of the [report and recommendation] to which objection is made." Id. The Ninth Circuit recently held that, "[t]he statute makes it clear that the district judge must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise. Neither the Constitution nor the statute requires a district judge to review, de novo, findings and recommendations that the parties themselves accept as correct." U.S. v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir.2003) (en banc), cert denied, 540 U.S. 900, 124 S.Ct. 238, 157 L.Ed.2d 182 (2003)(emphasis in original); but see Barilla v. Ervin, 886 F.2d 1514, 1518 (9th Cir.1989)(even without objections, conclusions of law must be reviewed de novo).

According to the Second Amended Complaint ("SAC"), Plaintiff was a prisoner at Calipatria State Prison in June, 2000. On June 30, 2000, Plaintiff alleges that a Calipatria correctional officer named P. Logan used excessive force upon him while another correctional officer, L. Liberty-Gonzalez did nothing to prevent Officer Logan from applying the force. The SAC is long (39 pages of handwritten and typewritten text and 66 pages of exhibits) and confusing. However, it appears that Plaintiff alleges that he suffered serious physical injury as a result of the force applied by Officer Logan. It also appears that he seeks to hold other supervisory correctional officers responsible for Officer's Logan's alleged acts of force, i.e., Warden Garcia, Associate Warden Houston, Captain Leapheart, Lt. Corona, Sgt. Borem, and Sgt. Settlemire. Warden Garcia has already been dismissed by this Court's earlier Order, filed October 8, 2003.

The Magistrate Judge recommended that all of the claims against Defendants Houston, Leapheart, Corona, Borem and Settlemire be dismissed without leave to amend because Plaintiff has not exhausted his administrative remedies with respect to these defendants. As the Magistrate Judge correctly pointed out, 42 U.S.C. § 1997e(a) requires exhaustion prior to the filing of an action under § 1983, and non-exhaustion can be properly raised in a non-enumerated motion to dismiss under FRCP 12(b). Wyatt v. Terhune, 315 F.3d 1108 (9th Cir.2003). While Plaintiff in his objections argues that he has begun the administrative appeals process by filing a "602," he acknowledges that it has not yet reached a Director's Level decision. See Objections, at 8-9. He also objects to the Magistrate Judge's recommendation that these defendants be dismissed without leave to amend.

Administrative remedies must be exhausted prior to the filing of an action. McKinney v. Carey, 311 F.3d 1198 (9th Cir.2002). Since Plaintiff's action was filed in 2001 and he has not yet exhausted his administrative remedies, Plaintiff cannot possibly satisfy the § 1997e(a) requirement for the present lawsuit. Therefore, granting Plaintiff leave to amend this action with respect to defendants Houston, Leapheart, Corona, Borem and Settlemire would be futile. Plaintiff must file a new action once his administrative remedies have been exhausted. Id., at 1200 ("Requiring dismissal without prejudice when there is no pre-suit exhaustion provides a strong incentive that will further these Congressional objectives; permitting exhaustion pendente lite will inevitably undermine attainment of them.").

Since some of Plaintiff's claims have not been exhausted, he presents a mixed Complaint. While the Ninth Circuit has not yet addressed the issue of whether "total exhaustion" of a mixed complaint is required by the Prison Litigation Reform Act ("PLRA"), several district courts have. One of the most recent cases from within the Ninth Circuit is Mubarak v. California Department of Corrections, 315 F.Supp.2d 1057 (S.D.Cal.2004)(Sabraw, J.). Mubarak recognized the divergence of opinions but adopted the "total exhaustion" approach.

A total exhaustion approach, in addition to the sound reasons set forth in Mubarak, would prevent Plaintiff from litigating his claims piecemeal. For example, if the excessive force case were to continue against officers Logan and Liberty-Gonzalez only, the non-exhausted defendants Houston, Leapheart, Corona, Borem and Settlemire likely would have to appear as witnesses. Later when administrative remedies were exhausted against Houston, Leapheart, Corona, Borem and Settlemire, and the case against them went to trial, Logan and Liberty-Gonzalez likely would have to appear as witnesses and give the same testimony offered at the first trial. In the same way, any other percipient or expert witnesses who were called to testify at the first trial would again have to testify at the second trial. Two sets of jurors would be called; two judges would preside; two courtrooms would be unavailable for other matters; justice would be ill-served. Litigants might even purposely file mixed complaints with the intention of multiplying litigation. Rather than support multiplicitous piecemeal litigation of prisoner claims of wrongdoing, this Court also follows the total exhaustion approach of Mubarak. Id. at 1061 ("this Court adopts the `total exhaustion' approach ... Because Plaintiff's third claim is unexhausted, the entire action is dismissed without prejudice").

Because Plaintiff's claims against defendants Houston, Leapheart, Corona, Borem and Settlemire are not fully exhausted, Plaintiff's Complaint is not totally exhausted. Because Plaintiff's Complaint is mixed, the entire action shall be dismissed without prejudice. Moreover, because amendment in this action would be futile in view of § 1997e(a), the action is dismissed without leave to amend.

Therefore, this Court adopts the recommendation of the Magistrate Judge as modified and grants the Motion to Dismiss and dismisses the Complaint in its entirety without leave to amend.

Since the action is dismissed without leave to amend, this Court need not reach any other recommendations concerning dismissal of Defendants Houston, Leapheart, Corona, Borem and Settlemire. Moreover, since this Court dismissed Warden Garcia on October 8, 2003, any objection to the recommendation to dismiss Garcia sua sponte is moot.

Furthermore, the recommendation to deny leave to file the proposed Third Amended Complaint ("TAC") is adopted. The proposed TAC attempts to restate actions against Houston, Leapheart, Corona, Borem and Settlemire. For the reasons discussed above, any action against these correctional personnel will have to be brought in a separate action after Plaintiff exhausts his administrative remedies. Since the proposed TAC will not comply with this order, leave to file the proposed TAC attached to Plaintiff's objections is denied.

Furthermore, since no objection is made, this Court also adopts the Magistrate Judge's recommendation and grants Plaintiff's voluntary motion to dismiss the remaining Fourteenth Amendment claims and all pendent state law claims.

The Clerk of Court is directed to close the file.

IT IS SO ORDERED.

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE RE DEFENDANTS' MOTION TO DISMISS SECOND AMENDED COMPLAINT AND SUA SPONTE DISMISSAL OF DEFENDANT GARCIA

[Doc. No. 56]

MCCURINE, United States Magistrate Judge.

This Report and Recommendation is submitted to United States District Judge M. James Lorenz, pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.3 of the United States District Court for the Southern District of California.

I. PROCEEDINGS

On October 4, 2001, Joseph Nichols ("Plaintiff"), a California state prisoner incarcerated at Salinas Valley State Prison in Soledad, California, filed this civil rights action pursuant to 42 U.S.C. § 1983. The district judge granted Plaintiff leave to proceed in forma pauperis ("IFP"), and simultaneously screened the Complaint in order to make a preliminary determination as to whether the Complaint required sua sponte dismissal on grounds that it was frivolous, malicious, failed to state a claim, or sought monetary damages against defendants who were immune. See 28 U.S.C. §§ 1915(e)(2), 1915A(b); Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir.2000) (en banc) (§ 1915A). Finding sua...